An Odd Bird

In United States v. Bird, 124 F.3d 667 (5th Cir. 1997)

Frank Bird ... while protesting outside the America's Women Clinic in Houston, Texas, threw a bottle at a car driven by Dr. Theodore Herring (Herring), an abortion provider, as he attempted to enter the clinic premises. As Bird threw the bottle, he yelled, "Herring, I'm going to get you. I'm going to kill you."

Bird was prosecuted under 18 U.S.C. 248 (the Freedom of Access to Clinic Entrances Act, or FACE), which makes it a felony to harass an abortion doctor and does not include a jurisdictional element that would require the federal government to prove that, hells bells, there's a federal issue in the case.  But Judge Garwood wrote for a 2-1 panel that Congress could regulate discreet, insulated, instrastate acts to protect the broader market for abortion:

Because we find that there was a sufficient basis for the Congress to have determined that the activity proscribed by the Act, though intrastate, could have a substantial affect on the congressionally-recognized national market for abortion-related services [FACE was valid under the Commerce Clause.]

After all, if doctors are afraid to go to work, they won't accept money to perform abortions.  [Note to Republicans -- How in the hell did you guys let this law get enacted? Did your love for criminalizing everything exceed your disdain for abortion?]

Bird was convicted, but he did not learn his lesson.  Comes now Bird IIUnited States v. Bird, No. 03-20884 (5th Cir. Feb. 28, 2005).

Five years later, Bird drove his truck through the door of an abortion clinic.  And he was again prosecuted under FACE.  The district court properly dismissed the indictment, since a post-Morrison understanding of the Commerce Clause could not save FACE.

A 2-1 panel of the Fifth Circuit Court of appeals reversed the trial court, writing that "We do not find that the Supreme Court’s decision in Morrison materially affects our holding in Bird I."  Judge DeMoss again dissented.  Wrote the good judge:

As in Lopez and Morrison, the criminal activity at issue here, the intentional damaging and destroying of a facility that provides reproductive health services, is neither an economic nor a commercial activity.  ***  The Court in Morrison further suggested that Congress could not, in the absence of a regulated activity which is economic or commercial, simply exercise a general police power...
Because Congress does not have a general police power, it surely cannot have the authority to define as criminal conduct under federal law private acts that are intended to interfere with another person’s exercise of some constitutional right, whether that right is to be free from gender-based violence as in VAWA or to choose to access reproductive health services, such as abortion, as in FACE.5 Purely criminal activities that are not premised in economic or commercial contexts are subject to an entirely different scheme of congressional regulations, none of which is justifiable under the Commerce Clause.

Slightly more provocatively, Judge DeMoss's reading of Morrison concludes:

Morrison refutes the concept of an aggregate effect on a national market when the conduct proscribed is violent criminal conduct. 529 U.S. at 615-19. As a preliminary matter, the Commerce Clause may not reach noneconomic activity that only affects commerce through a “but-for” causal chain.
While Bird I concluded that Wickard, reaffirmed by Lopez, permits the aggregation of intrastate, noncommercial activity, the Supreme Court’s more recent decision in Morrison expressly forecloses any such aggregation.

Please read the full dissent here.

I'm going to take a walk and think about this decision.  I'll report my thoughts later, and hope you include yours as a comment.